To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v.United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as […]

This Friday, July 6, at 8 p.m. Mountain Time, is Colorado Inside-Out’s annual Time Machine episode, on Colorado Public Television, channel 12. These episodes have won three regional Emmy Awards. This year’s episode takes us to 1973, with discussions of Equal Rights Amendment ratification, political violence, the energy crisis, and Watergate.

The characters are, from left to right: KHOW radio host Charlie Martin (Dominic Dezutti), folksinger Judy Collins (Patty Calhoun), Colorado State Rep. Gerald Kopel (me), an obscure actress with a couple Broadway cast appearances (Dani Newsum), and Rocky Mountain News police reporter Al Nakkula (Kevin Flynn). If you don’t live in Colorado, you can watch it on the cpt12.org website, starting sometime next week.

Also on the cpt12.org website, by Friday, will be a bonus segment, set in the year 2025. There we discuss the challenges facing President Chelsea Clinton, as she faces a hostile Congress dominated by the fusionist Green Tea Party.

(I’ll be honest: this post isn’t really about the fruit of the poisonous tree so much as it’s about Sherlock’s possible status as a state actor and thus whether or not the restrictions of the Fourth Amendment apply to him. The poisonous tree bit just makes for a snappier title and is at least somewhat related to the main topic.)

In many ways Sherlock Holmes is the Ur-superhero, prefiguring Batman. They are both detectives possessing no supernatural abilities, only a keen intellect, physical training, a faithful assistant, and a relentless drive to solve or prevent crime. In the case of the Sherlock Holmes of Elementary, they even share a certain degree of wealth — though Sherlock doesn’t flaunt it, he does use his wealth to solve problems on a few occasions. They also share a strong connection with the police.

It is that connection with the police that is so often a troubling feature of Elementary. Often Sherlock will make a point of his police affiliation in order to gain access to a building or get a person of interest to talk. But at other times he will claim that, since he is not a police officer, he does not need a warrant to perform a search (searches that often include breaking and entering). Which is closer to the truth? Or can he have it both ways?

I. The Fourth Amendment and the State Action Requirement

Like most of the Constitution, the Fourth Amendment restricts the powers of the federal and state governments, not private individuals. In every state except Texas, if a non-state actor independently performs an illegal search or seizure, any evidence obtained is still admissible. In every state, if a government agent does so, any evidence obtained — and any evidence derived from that […]

Ordinarily at Law and the Multiverse we stick to more fantastical topics (“superheroes, supervillains, and the law”), so when we were given the opportunity to write some guest posts for the Conspiracy, we realized this would be an ideal occasion to discuss something more down to earth — not to mention more well-known than some of the things we write about. And as it happens over the past several months we’ve received several great questions from readers about the CBS show Elementary.

The first question comes from Jeb, who wrote in about the episode “Snow Angels“, in which Sherlock attempts to commandeer a city snow plow for transportation during a blizzard. When the driver, Pam, refuses, Sherlock invokes his authority as being affiliated with the New York City Police Department. Unsurprisingly, Pam balks at that as well, and Sherlock ultimately resorts to a bribe. Jeb asks:

Would a regular policeman have the legal authority to commandeer the snow plow?

Is it plausible that Sherlock, as a consulting detective, has the authority to commandeer the plow?

Once the bribe is offered and accepted, does Pam have any legal defense or is this straight up bribery?

I. Commandeering Vehicles

We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? In this case, note that Sherlock isn’t seeking merely to commandeer the vehicle but also Pam’s services.

One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent […]

Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).

We are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6. […]